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HuffPo has an article up saying of course Rick Perry committed egregious felonies. Waste of time, so I’m not linking here. However, Eugene Volokh, who has covered this earlier, today offers up some analysis of Perry’s so-called “impermissible motive” which is what the fascist Democrats (but I repeat myself) are hanging their tinfoil hats on.

Rather, the theory is that there’s some broad unfaithfulness or impropriety in what the Governor was doing that warrants criminal punishment even in the absence of a clear definition of what is improper.

That can’t be constitutional. It’s unconstitutionally vague for the law to require that people present “‘credible and reliable’ identification” to police officers when asked to do so (see Kolender v. Lawson (1983)), because this “necessarily ‘entrust[s] lawmaking ‘to the moment-to-moment judgment of the policeman on his beat’’” and “encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.” It’s likewise unconstitutionally vague for the law to be read as banning votes or vetoes under a “they don’t faithfully execute the duties of the office” standard.

Indeed, the vagueness problem is, if anything, especially great here precisely because it involves a restriction on a political official’s exercise of his political actions. If prosecutors can prosecute legislators or governors just because they think those officials aren’t faithful public servants (rather than because the officials engaged in some specifically prohibited action), the result would be (1) unfairness to the officials, who don’t know what can get them prosecuted, (2) for some officials, deterrence of actions that might catch the ire of a hostile prosecutor, and (3) a vast risk of discriminatory criminal enforcement by prosecutors who have a political axe to grind against a politician (whether or not this particular prosecutor in the Gov. Perry case has such an axe to grind).

Rho Chalmers, who disclosed to the Houston Chronicle yesterday that she was a member of the grand jury that indicted Texas Gov. Rick Perry, was an active delegate to the Texas Democratic Party convention during grand jury proceedings. Chalmers’ active participation in Democratic state politics is important because she claimed yesterday to the Houston Chronicle that her decision to indict Perry, a Republican, was not based on politics.

“For me, it’s not a political decision,” Chalmers told the newspaper. “That’s what a grand jury is about – take the emotion out of it and look at the facts and make your best decision based on your life experience.”

More troubling, however, is the fact that Chalmers attended, photographed, and commented on an event with Democratic state Sen. Kirk Watson while grand jury proceedings were ongoing.

A decent judge would do more than laugh, I think, though he may hold a view of any prosecutor to bring such a travesty before his court as a man or woman possessed by an absurd stupidity.

Still, I’d think a decent judge would immediately recognize the application of a non-existent law as a tool of partisan political weaponry, and therefore also recognize the threat to the system of justice in which that judge sits as juror. Not only would such a decent judge react with dismissal, I think the judge would react delivering whatever punishments lie within his capacity to administer, with recommendations to other branches of government or to professional organizations or to the people of the state themselves that every possible measure be taken against such a phony prosecutor, and that such a prosecutor should be driven from office post haste.

If their argument is that the threat to veto funds is an actionable offense, then isn’t the threat to indict equally actionable? I’d love to see a judge throw the prosecutor in the clink for exactly the same charge he brings before the court.

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